In this morning’s New York Times, Robert Reich describes a serious consequence of gridlock in Congress: the loss of democracy. “Political decision making has moved to peripheral public entities, where power is exercised less transparently and accountability to voters is less direct.” Reich explains the consequences for the management of the economy, for the balance of power with the Supreme Court, for our nation’s capacity to slow climate change, and for the balance among state and federal responsibilities.
Democracy is also being abrogated in another policy area less reported these days: public education. And while this month the most obvious examples of threats to democratic governance of the public schools are at the local level—the power of emergency managers appointed by Michigan’s governor to privatize whole school districts, to override labor contracts, and even to close school districts while elected school boards stand by to watch—there are also very serious issues of federal overreach by the U.S. Department of Education at this time when Congress cannot agree to act.
Although Congress is supposed to reauthorize the federal Elementary and Secondary Education Act (ESEA) every five years, the 2002 version, called No Child Left Behind, is now six years overdue to be rewritten. Still Congress dithers. No Child Left Behind (NCLB), has now shaped federal public education policy for eleven years.
U.S. Secretary of Education Arne Duncan and the U.S. Department of Education have dealt with Congress’s inability to build consensus around an ESEA reauthorization by managing federal education policy administratively, granting waivers to states from onerous consequences of NCLB if the states submit proposals that conform to priorities set by the Department. The waivers are being granted without any oversight by Congress.
No Child Left Behind waivers permit states to escape the unworkable and utopian Adequate Yearly Progress requirement that schools post ever higher annual test scores or be declared “failing.” The waivers permit states to stop setting aside federal Title I money for transportation to support school choice by which students in so-called “failing” schools can move to other schools. And the waivers permit states to get rid of the controversial Supplemental Education Services, a tutoring program that has diverted federal funds away from in-school Title I programming to outside, after-school tutoring programs that have too often profited unscrupulous providers.
While there is now widespread agreement that Adequate Yearly Progress, school transfers, and Supplemental Education Services harmed public schools, there is growing concern about the administrative—not democratic—way the Department of Education has sought to provide relief. To qualify for waivers, states’ applications had to include adoption of one of two versions of the Common Core Standards, including new and controversial standardized tests like those whose scores New York reported earlier this week. To qualify for waivers states have also had to agree to incorporate students’ standardized test scores in the evaluation of teachers. These are Departmental—not Congressional—priorities.
The latest flap about the side-stepping of democracy through the NCLB waivers happened just this month. After the Department of Education rejected California’s application for a waiver last year because California’s proposal did not meet the Department’s requirements for evaluating teachers, eight local California school districts including very large districts like Los Angeles, Fresno, and Long Beach, did an end run around their state department of education to apply for their own waiver as a consortium of school districts. Writing for Education Week, Michele McNeil reported that on August 6, the consortium of districts received a one-year NCLB waiver, which can be renewed on the condition that they fully implement the school-rating system and teacher-evaluation plans the eight districts proposed.
How does the federal granting of a NCLB waiver to a group of school districts interfere with democracy? The issue is constitutional. State constitutions, not the U.S. Constitution, grant the authority for the establishment and regulation of local school districts. According to McNeil, “…this waiver is unprecedented for its scope, and for how it changes the dynamic between districts, the state, and the federal government.”
In a follow-up commentary, McNeil wonders, for example, about a new oversight panel the eight California districts created to police themselves: “Will the new ‘oversight’ panel provide enough oversight… as a state would provide in the traditional accountability relationship? …the oversight panel’s authority (such as it is) is derived from a really squishy place. This new panel’s power is not rooted in law, or state board regulations, but in a waiver agreement between the feds and these districts.”
You may wonder: Isn’t this too arcane and too far “out in the policy weeds” for most of us to care about it? That’s just the problem. While as individuals we are unlikely to be able to track and impact policy at this level, our democracy was set up with three branches of government to balance and check each other. When Congress (the legislative branch) fails to make the laws (what our civics classes taught us Congress is supposed to do), when it cannot reach any sort of compromise to reauthorize the Elementary and Secondary Education Act, there is no check on what is today the overreach of the executive branch, in this case represented by the U.S. Department of Education.
To its credit, the Department of Education has made an effort to alleviate the damage of the No Child Left Behind Act. The problem is that the Department’s method of trying to fix NCLB without adequate Congressional oversight increasingly interferes with the democratic process. Democratic governance of public education is essential for ensuring that families can secure the education to which their children have a right.